War-Sustaining Activities and Direct Participation in the DOD Law of War Manual

In a recent post on Lawfare, Butch Bracknell discussed the use of leaflets by the United States to warn truck drivers transporting oil for ISIL of an impending attack. Bracknell argued that these warnings are not required under international humanitarian law (IHL). While Aurel Sari has commented generally on Bracknell’s analysis, and Beth Van Schaack has provided a thorough two-part examination (here and here) of what IHL requires in this situation, my focus here is on Bracknell’s claim that his analysis of direct participation in hostilities (DPH) finds support in the Defense Department Law of War Manual.

Bracknell’s post is provocative in taking an expansive view of the notion of DPH by civilians. The gist of the argument is that the fuel delivered by the truckers is either destined for military vehicles or directly linked to the economic activity and revenue that enables ISIL’s combat operations. As a result, even if these truckers are assessed to be civilians and not members of ISIL, Bracknell argues that the truckers satisfy the DPH standard and may themselves (not just the conveyance and cargo) be made the object of an attack. Bracknell’s analysis is important for three reasons that will be discussed here. First, it presents an oversimplified analysis of what the manual requires in terms of the circumstantial analysis of civilian participation. Second, it significantly stretches the required nexus between the target and military operations. Third, and most importantly, it indirectly highlights an important area of the manual that could serve to expand the DPH standard: the manual’s adoption of the “war-sustaining” model of DPH.

Circumstantial Analysis

According to the manual, “whether an act by a civilian constitutes taking a direct part in hostilities is likely to depend highly on the context.” This is echoed in the United Kingdom’s Manual of the Law of Armed Conflict: “[C]ommanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.” Any assessment of the lawfulness of targeting a civilian truck driver will entail an individualized examination that is likely focused on the combat operations in the area and the specific geographic destination of the truck driver in question. This examination will be made “in good faith and on the basis of information available to [those involved in the targeting process] at the time.”

Despite acknowledging the significance of circumstantial considerations, Bracknell’s analysis lacks considerable clarity in drawing conclusions about the activities of the truckers at issue. For example, for the truckers who actually are supporting combat operations, it is not clear if his conclusion is limited to scenarios in which the trucker is delivering fuel to active combat operations or if the argument would extend to the refueling of military assets in areas distant from combat. This type of factual granularity is critical in this analysis and is expected by the manual.

Causal and Belligerent Nexus

More substantively, Bracknell’s analysis with respect to economic oil transport stretches the required nexus to military operations. On this point, while favorably quoting the International Committee for the Red Cross’s Interpretive Guidance and its three-part test for DPH (threshold of harm, direct causation, and belligerent nexus), Bracknell glosses over the ICRC’s strict interpretation of the “causal nexus” between the civilian’s act and the resulting harm. The guidance emphasizes that the civilian’s act, insofar as it is relevant to a collective operation, must be part of a “concrete and coordinated military operation” (emphasis added).

The manual does not accept the Interpretive Guidance as reflecting customary international law in its entirety and, instead of adopting the three-part test, lays out a range of activities relevant to the DPH determination. At one end of the spectrum are “actions that are, by their nature and purpose, intended to cause actual harm to the enemy” and at the other are actions that constitute “general support that members of the civilian population provide to their State’s war effort.” Within that range, the manual sets out discrete criteria designed to assist in judging the nature and extent of a civilian’s direct participation in hostilities. These criteria are focused generally on the following questions: the degree to which the act causes harm to the opposing party; the degree to which the act is connected to the hostilities; the specific purpose underlying the act; the military significance of the activity to the party’s war effort; and the degree to which the activity is viewed inherently or traditionally as a military one. Fundamentally, these criteria look at similar issues as those presented in the ICRC guidance’s three-part test, but the manual diverges from the guidance in two important respects that are relevant to the question of support for groups like ISIL.

First, where the guidance limits the DPH evaluation of harm caused by the civilian’s actions to the detriment caused to the opponent, the manual calls also for consideration of the benefit provided to the group being supported. This means that, as applied to the trucker scenario, satisfying DPH under the manual would not require that the trucker’s actions induce a harmful effect and it may be sufficient that they provide a benefit to ISIL. Second, while the guidance specifically excludes “indirect” support to combat operations from its definition of DPH, the manual leaves room for extension to what may be, arguably, labeled indirect activities insofar as it calls for consideration of “the degree to which the act contributes to a party’s military action against the opposing party.”

The phrase “contribution to military action” appears to pull from the manual’s discussion of the targeting of objects (which, in turn, draws from Art. 52 of Additional Protocol I) and the controversial, although gaining in acceptance, notion that war-sustaining objects constitute lawful military objectives. While this is the only use of the phrase “military action” in the DPH discussion, it is recognized as a term of art in the discussion of military objectives. In that discussion, the manual defines “military action” in the following way:

Military action has a broad meaning and is understood to mean the general prosecution of the war. It is not necessary that the object provide immediate tactical or operational gains or that the object make an effective contribution to a specific military operation. Rather, the object’s effective contribution to the war-fighting or war-sustaining capability of an opposing force is sufficient.

Under this definition, the manual’s inclusion of those contributions provided to the “military action” of the opponent as a basis on which to find DPH would seem to indicate an extension of the war-sustaining model to persons.

But, even if the manual’s DPH standard does reach war-sustaining activities benefitting ISIL, that does not necessarily confirm Bracknell’s analysis. Again, the manual requires an analysis of the degree to which the civilian activity contributes to the military action. As Michael Schmitt noted in his expert statement to the ICRC during its development of the Interpretive Guidance, most logistics and support functions do not qualify as DPH. Context is critical and there is a substantial distinction between what Schmitt labels “immediate battlefield logistics functions” and ordinary supply operations. This distinction is appreciated elsewhere in the manual, which notes that “in some contexts, training and logistical support may be viewed as taking a direct part in hostilities, while in other contexts it might not.” The manual also distinguishes “delivering ammunition to the front lines” (an example of DPH) from “working in a munitions factory or other factory that is not in geographic or temporal proximity to military operations but that is supplying weapons, materiel, and other goods useful to the armed forces of a State.”

In comparing ISIL’s oil production workers to the munitions factory laborers, Canadian Brig. Gen. (Ret’d) Kenneth Watkin noted last year that “running an oil production facility is not the type of combat support, or combat service support activity (i.e., storing and transporting oil, lubricants and fuel) that States might normally consider as qualifying for armed group membership, or meeting the direct participation test.” In fact, revenue generation is much more attenuated than even the munitions factory scenario in that the financial support being rendered is not itself a material war-fighting object. Yet, while the manual would sustain the protections for the civilians in munitions facilities fabricating lethal devices intended for use on the battlefield, Bracknell’s analysis would discard those protections for civilians transporting oil for non-combat uses.

War-Sustaining Model

Bracknell’s analysis is valuable, though, as it calls attention to the manual’s inclusion of the war-sustaining model in the DPH standard. Widening the field of civilians who can be targeted under the DPH standard to include war-sustaining activities is likely to be contested. The manual itself supports the notion that “general support” falls short of direct participation. Similarly, according to Schmitt, “[g]eneral consensus exists that civilians engaged in conducting ‘war-sustaining’ activities are not directly participating in hostilities and may not be subjected to direct attack.” Nonetheless, reference to “contributions to military action” in the context of DPH appears to open the door on directly targeting these activities.

This could have significant implications, particularly when that war-sustaining activity represents illicit dealings with terrorist groups. As has previously been commented on here, ISIL’s oil smuggling operations may be more accurately described as a criminal enterprise than a military operation. This would certainly find support in the resolutions of the United Nations Security Council, which refer to the support of terrorist organizations as “serious criminal offenses.” That characterization would tend to narrow what activity might qualify as direct participation. The manual hints at this type of tension between IHL and law enforcement when it observes that “whether someone may be made the object of attack for taking a direct part in hostilities is different from whether he or she may be prosecuted for his or her actions” (acknowledging that the latter category is broader than the former).

But, would oil smuggling fall into the category of “contributions to military action” that meet the DPH standard? The interaction between illicit war-sustaining activity and direct participation is not entirely clear in either the manual or recent practice. This was evidenced in 2009 when the US and NATO were criticized, both by UN Special Rapporteur on extradjudicial, summary or arbitrary executions and others, based on reports that Afghan drug traffickers had been included on a list that permitted targeting at any time or place. While the particular targeting decisions were no doubt nuanced and may not have relied solely on an economic connection between the drug traffickers and insurgents, it is relevant that the criticism at the time was very squarely focused on the understanding that illicit economic activity does not itself provide a sufficient nexus to hostilities for targeting purposes. On this point, the Special Rapporteur offered the following opinion: “[D]rug trafficking is understood as criminal conduct, not an activity that would subject someone to a targeted killing … generating profits that might be used to fund hostile actions does not constitute DPH.” Schmitt similarly concluded that “drug activities would generally fail the direct causation test … for such activities are not ‘integral’ to specific military operations.”

Targeting civilians involved in the illicit trafficking of oil for revenue collection by ISIL would likely produce the same conclusion, but the manual seems to broaden the analysis beyond activities that are “integral” to military operations and leave the door open to directly targeting civilians engaged in war-sustaining activities. Putting the merits of the manual’s approach to the side, Bracknell’s post serves to highlight that this is certainly an important development and could have real application as ISIL and other armed groups continue to use smuggling activities to generate revenue.

The views expressed in this article are the authors’ own and do not necessarily reflect those of the US Government, the Department of Defense, or the Department of the Navy.